Last updated 16 August 2016     This chapter is currently under review.

Once a plaintiff establishes the elements discussed above, the defendant then bears the onus of proving any defence to the action. The following defences may apply to a claim for damages for personal injury:

  • obvious risk
  • inherent risk
  • voluntary assumption of risk
  • dangerous recreational activity
  • exclusion of liabilities
  • illegality
  • inevitable accidents
  • contributory negligence.

Obvious risk

Section 15 of the Civil Liability Act 2003 (Qld) (Civil Liability Act) provides that there is no duty to warn of an ‘obvious risk’ to the plaintiff unless:

  • the plaintiff has requested advice or information about the risk
  • the defendant is required by written law to warn of the risks
  • the defendant is a professional, other than a doctor, and the risk of the death of or personal injury to the plaintiff arises out of the provision of a professional service by the defendant.

An obvious risk is defined to be a risk that, in the circumstances, would have been obvious to a reasonable person in the position of the plaintiff (s 31(1) Civil Liability Act). It includes:

  • risks that are patent and a matter of common knowledge and those that have low probability of occurring
  • risks that are not prominent, conspicuous or physically observable
  • risks of a low probability.

A risk that arises because of the failure of the defendant to properly operate, maintain, replace, prepare or care for a thing is not obvious unless the defendant’s failure itself is obvious.

For example, where a plaintiff stepped over the foul line and onto the polished, slippery surface of a ten pin bowling lane whilst ten pin bowling, the risk of slipping on the bowling lane was not considered to be an obvious risk because the foul line was not clearly delineated (Windley v Gazaland Pty Ltd T/A Gladstone Ten Pin Bowl [2014] QDC 124).

In respect of work-related accidents, s 305H(f) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act) provides that a court may make a finding of contributory negligence if a plaintiff undertakes an activity involving an obvious risk.

Inherent risk

A defendant is not liable in negligence for harm suffered by a plaintiff as a result from the materialisation of an ‘inherit risk’ (s 16 Civil Liability Act).

An inherit risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.

For example, the risk of one golfer being struck by a golf ball hit by another golfer whilst walking on a golf course has been held to be an inherent risk which will not give rise to liability (Pollard v Trude [2008] QSC 335).

Voluntary assumption of risk

A defendant can avoid liability by establishing ‘voluntary assumption of risk’ by the plaintiff. The defendant must show that the plaintiff:

  • was fully aware of the risk involved in the activity
  • had a full appreciation and comprehension of the nature and extent to the risk and
  • voluntarily accepted the whole of that risk.

If the risk is an obvious risk, the plaintiff is presumed to have been aware of the risk unless the plaintiff proves otherwise (s 14 Civil Liability Act).

Dangerous recreational activity

A defendant is not liable for harm suffered by the plaintiff as a result of the materialisation of an obvious risk associated with a dangerous recreational activity engaged in by the plaintiff whether or not the plaintiff is aware of the risk (s 19 Civil Liability Act).

‘Dangerous recreational activity’ is defined in s 18 of the Civil Liability Act to mean an activity engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to a person.

Exclusion of liability

A defendant might seek to modify their exposure to liability by stipulating a reduction, or even an exclusion, from liability. Exclusion of liability clauses are sought to be relied upon in circumstances where a defendant is prepared to establish a relationship with the plaintiff only on terms expressly defined by them (e.g. permitting entry to their premises, offering services to their client). These terms can become binding.

An exclusion clause will only be upheld to exclude liability for negligence if the clause is specifically and clearly worded to do so. However, if the clause is broadly worded such that its meaning is lost, reliance cannot be placed on it.

Clauses in contracts that are subject to the Australian Consumer Law 2011 that try to exclude liability for breaches of consumer guarantees are void.

Illegality

‘Joint illegal enterprise’ may be raised as a defence to a claim when both the plaintiff and the defendant were voluntarily involved in an illegal or criminal act together at the time when the plaintiff is injured. At common law the defendant must prove that:

  • the defendant and the plaintiff were jointly engaged in illegal activities
  • there was a connection between the illegal activity and the negligent conduct.

Where the plaintiff is unaware of the illegality of the activity or was forced to participate in it, the defence will not succeed.

Further, if the plaintiff, although a willing participant in the illegal enterprise in the first place, subsequently withdraws from the illegal enterprise, for example by requesting to be let out of a stolen vehicle in which they are a passenger, then a duty of care may be owed after such time as the plaintiff withdrew (Miller v Miller [2011] HCA 9).

A plaintiff will be prevented from recovering damages if they suffered an injury whilst engaged in conduct that was an indictable offence, and that conduct materially contributed to the risk of the harm which eventuated (s 45 Civil Liability Act). The court does, however, have a discretion to award damages if it is satisfied that it will be harsh and unjust not to. In those circumstances, the court is obliged to reduce the damages by at least 25%.

Inevitable accident

At common law, a plaintiff cannot succeed in a claim for negligence if the injuries arise as a result of an inevitable accident. Inevitable accident is not a defence as such, it is essentially a case of the plaintiff failing to establish negligence.

The focus of the enquiry is whether there was anything the defendant could have done to prevent the accident by the exercise of ordinary care, caution and skill between the time of the inevitable event occurring and the injury being suffered. The issue of inevitable accident mainly arises in respect of motor vehicle accidents, for example:

  • a diabetic driver suffering a hypoglycemic attack
  • an object suddenly entering a driver’s eye
  • a driver suffering a coughing attack
  • a driver being stung by a bee
  • a tyre blow out
  • a driver suffering a black out.

Contributory negligence

Contributory negligence is a failure by a plaintiff to take reasonable care for their own safety in the circumstances where that failure contributed to the accident.

In other words, the plaintiff contributed to their own injuries because of their own actions or omissions. Section 10 of the Law Reform Act 1995 (Qld) allows a court to reduce damages by an amount it considers fair and equitable having granted the extent of the plaintiff’s share of responsibility for the harm.

Sections 24 of the Civil Liability Act and 305G of the WCR Act both provide that a court may reduce the plaintiff’s damage by 100% on account of contributory negligence if it considers it just and equitable to do so.

Common examples of contributory negligence include:

  • failing to wear a seat belt
  • intoxication
  • a pedestrian running out onto the road
  • an employee failing to wear proper safety equipment provided by the employer.

When considering the question of apportionment of responsibility, the court will consider the entire conduct of both parties in relation to the circumstances of the accident and make a comparison between their respective departures from their obligations.

Under the Civil Liability Act, a mandatory reduction of a plaintiff’s damages is prescribed in certain circumstances. In particular where a plaintiff is injured, in circumstances where either the plaintiff or the defendant, or both, are intoxicated and the intoxication has contributed to the defendant’s breach of duty (ss 47–49 Civil Liability Act).